Out, damned spot! FCC kills Fairness Doctrine again

The Chair of the FCC has announced that the Fairness Doctrine is being removed …

"Out, damned spot! out, I say!" declares Lady MacBeth in Act V, Scene I of the famous play. "Who would have thought the old man to have had so much blood in him?" If the lady was a Federal Communications Commissioner today, she might be making that rueful comment about the Fairness Doctrine, which the agency says it is going to slay one more time.

"The elimination of the obsolete Fairness Doctrine regulations will remove an unnecessary distraction," declared FCC Chair Julius Genachoswki this week. "As I have said, striking this from our books ensures there can be no mistake that what has long been a dead letter remains dead. The Fairness Doctrine holds the potential to chill free speech and the free flow of ideas and was properly abandoned over two decades ago. I am pleased we are removing these and other obsolete rules from our books."

You may be scratching your head at this point. Didn't the FCC abandon the Fairness Doctrine in the late-1980s? And hasn't every Commission Chair over the last dozen years promised that this legacy regulation, which required broadcasters to provide "reasonable opportunity" for "contrasting" points of view, will never return? Didn't President Obama himself support the doctrine's continued extinction in 2008?

Yes, the FCC did. And yes again, they subsequently said those things. But in this hyper-partisan political atmosphere, it seems that you can't whack the Fairness Doctrine often enough. And to be fair, there is a plausible book cleaning rationale here.

Unworkable rules

The FCC suggested that it was going to take this step in a recent report titled The Information Needs of Communities. The survey examined the state of media and made various observations, among them that the Internet had "hamsterized" journalism, foisting too many digital tasks on reporters.

But the report also contended that the Commission could help broadcasters by scotching various "unworkable" ideas. It strongly recommended for retirement a proceeding on localism suggesting that radio and television outlets keep someone on the station premises around-the-clock, and a yet-to-be-enacted "enhanced disclosure" rule that would require broadcasters to offer detailed summaries of their programming online.

And the document also noted that while the Fairness Doctrine was no longer being enforced, it remained on the Commission's rule roster. Here's the actual rule itself:

The Fairness Doctrine is contained in section 315(a) of the Communications Act of 1934, as amended, which provides that broadcasters have certain obligations to afford reasonable opportunity for the discussion of conflicting views on issues of public importance.

"It is unclear why the Commission did not eliminate this when it repealed the Fairness Doctrine policy," the report acknowledged. "The sentence has no force of law or policy import, but, it should be said, the language remains 'on the books'." Although the Doctrine isn't in effect, "we should eliminate any outstanding uncertainty about our intentions," it added, by removing this sentence from the Commission's manual of regulations.

The Daly Show

Interestingly, there's a long-standing legal/scholarly debate about whether the assertion contained in above language extract is even correct. Although the Fairness Doctrine was enforced by the FCC for 30 years, and the Supreme Court validated it in its 1969 Red Lion decision, Congress never explicitly enacted something titled a "Fairness Doctrine" law. The closest thing to it Capitol Hill ever passed was a phrase included in a revised version of the aforementioned Section 315(a)—the "equal time" TV/radio station use rule for political candidates. The amendment was added in response to an uproar over whether to apply equal time standards to news stories in which candidates appeared.

The provoker of this brouhaha was Lar Daly, whom Wikipedia diplomatically describes as a "fringe politician" based in Chicago. From 1942 through 1978, Mr. Daly ran for President, Mayor of Chicago, and Governor, Senator, and Representative of Illinois no less than 27 times. His best showing was a 1962 Illinois Senate Democratic primary race, in which he scored almost 23 percent of the vote. In 1959 he threw his hat into both the Democratic and Republican Chicago mayoral primaries, and easily lost both.

But during the course of these 1959 contests, Daly demanded equal time on a Chicago TV station. He noted that the license holder in question had aired a segment of the city's Mayor Richard Daley greeting Argentina President Arturo Frondizi at Chicago's airport. To the gobsmacked horror of the broadcasting industry, the FCC granted his petition. In what became known as the Lar Daly decision, the Commission ruled that the news spot constituted a "use" of the broadcast station. Thus Daly deserved equal time.

You can doubtless glean the problem here from the perspective of broadcasters. By this regulatory logic, a TV station that dared show an eight-second news clip of President Eisenhower during the election season could be deluged with equal time requests from every Trotskyite, Dixiecrat, and Rosicrucian from Chicago to Hollywood making a bid for the Oval Office.

The broadcast lobby instantly went into high gear. Senate hearings took place a week after the ruling, with the intent of exempting news programs from the equal time provision. This the amended language passed by the House and Senate did, but it also added the following:

Nothing in the foregoing sentence shall be construed as relieving broadcasters, in connection with the presentation of newscasts, news interviews, news documentaries, and on-the-spot coverage of news events, from the obligation imposed upon them under this Act to operate in the public interest and to afford reasonable opportunity for the discussion of conflicting views of issues of public .

Is it dead yet?

Ever since the enactment of that last portion of the amendment, legal analysts have debated whether it codified the Fairness Doctrine into law. A contemporary Congressional Conference Report on the bill called it "a restatement of the basic policy of the 'standard of fairness' which is imposed on broadcasters under the Communications Act of 1934."

But by 1985, as the FCC prepared to jettison the Fairness policy, it concluded that Section 315(a) could not be read as a statutory mandate.

"The legislative history lacks clear record evidence demonstrating a reasoned consideration of the fairness doctrine which would indicate an intent by Congress to codify the doctrine," that year's Fairness Doctrine report concluded. "While there are scattered references to the obligations of broadcasters under the public interest standard to present both sides of controversial public issues by some members of Congress, there was no significant discussion of the Commission's fairness doctrine."

Two years later, the FCC's Commissioners repealed the Fairness Doctrine by a vote of 4-0. That didn't make the issue go away. Congress tried to reinstate the doctrine, but could not overturn a veto by President Reagan.

As talk radio and cable became an increasingly dominant medium, the debate over the Fairness Doctrine became more and more polarized. It is largely forgotten that in 1985, some conservatives, including Phyllis Schlafly, spoke favorably of the measure. The conservative media critic Reed Irvine insisted that sans the doctrine, public affairs programs would become "political tools."

But by the late 1990s, the lines on the matter had hardened. Liberals blamed the repeal of the Fairness Doctrine for what they saw as the media's rightward drift. Conservatives saw any favorable mention of the doctrine in Congress as the opening salvo of a full-scale assault on talk radio and Fox TV news. Liberals wrung their hands over the "polarization" of television and radio. Foes of the Fairness Doctrine began to see it in other measures, including the agency's aforementioned localism proposals, and even net neutrality.

No surprise then that this FCC would welcome a chance to jettison the last remnants of this troublesome policy from its rulemaking ledger. If there were any broadcasters who actually thought the Fairness Doctrine was coming back, perhaps their fears of uncertainty are now assuaged. But will this move soften the long deceased measure's impact as an "unnecessary distraction"? That remains to be seen.

Further reading

Steven Simmons, The Fairness Doctrine and the Media

Hugh Carter Donahue, The Battle to Control Broadcast News

Matthew Lasar
Matt writes for Ars Technica about media/technology history, intellectual property, the FCC, or the Internet in general. He teaches United States history and politics at the University of California at Santa Cruz. Emailmatthew.lasar@arstechnica.com//Twitter@matthewlasar